All posts by amysalberg

In Part I of this series, we explored the enforceability and trustworthiness of online legal forms and learned that there is more to effective and enforceable documents than nice-sounding language. This post discusses the services provided by online legal form providers (other than allowing you to download a standardized document that may or may not be legal, enforceable, or applicable to your situation).

What Services Do Online Form Providers Offer?

The terms and conditions of the top online legal forms providers make clear that, despite the implication that you can “Do it Yourself” with their forms, even they recognize that legal judgment is also needed in order to ensure that the “form” language you are purchasing makes sense for how you intend to use it.

One online form provider provides documents that they say they will guide you through, claiming:

These legal documents, forms and letters make it simple for you to create legally-binding agreements at no cost. Whether you’re documenting a deal, forming a business, or doing something as simple as selling a car, you’ll find free legal documents for almost any need.

But, they end this claim by acknowledging they can’t provide legal advice or exercise judgment:

And if you have any questions about our online documents or forms, we’re always happy to connect you with a lawyer to make sure everything is legal.

In our digital information age, “online” is the first place many of us go with a tricky question like, “What year did Elvis enter the Army?” (A: 1958) or “Are there alternatives to the ‘Cone of Shame’ for my pooch who just had surgery?” (A: Yes – in fact, there are many good alternatives; my dog liked the ProCollar™ best). How about “What form of business entity should my new company take and which documents should I use to create and manage the entity?” (A: It depends. Only by applying legal knowledge to multiple factors can this be answered.)

EXTRA! EXTRA! READ ALL ABOUT IT:
Unenforceable Online Legal Form Exposes Company to Potential Liability

No business owner wants to see its company name in such a headline. But, that is precisely the type of outcome the small experiment I just conducted could have led to.

In order to speak intelligently about online legal forms, I obtained one. To protect the not-so-innocent, I’ll withhold the name of the form provider and will not share their proprietary information here.

Most of us generally understand that the Bill of Rights and civil rights legislation stemming from it applies to protect individuals against governmental overreach, whether that be in the form of an attempt to suppress our speech, religious freedom, right against unreasonable search and seizure, or other civil rights. And most of us understand a corporation to be a legal entity that is separate from its owners/shareholders.

So, how did Hobby Lobby, which is a corporation, successfully assert a right under the Religious Freedom Restoration Act – a civil rights statute?

I have been told by more than one client that I was the “secret ingredient” to getting a sticky commercial deal done when the other side’s lawyer created unnecessary roadblocks (apparently not realizing that his or her client also had an interest in getting the deal done).

What do I do that’s so special? First, I listen to my clients. Novel concept? Apparently. Some attorneys seem to have an interest in giving the false appearance of having done something by adding unnecessary language to a contract that is well-drafted in plain English and sufficiently protective of both sides’ interests. This desire to appear busy seems to override their desire to help their clients achieve their goals.

In a similar vein, it appears many attorneys want to appear to be prolific in their blogging by having others do their work for them, ignoring the misrepresentation inherent in such an undertaking.

Setting aside for a moment whether you should ask your customers to agree not to provide negative reviews of your business as a business practice (that is a discussion all its own), the question before us is whether such an agreement is likely to be enforceable as a legal matter.

Our last post discussed the issue of online defamation by non-customers and what can be done about it. Now we are going to address your ability, as a business owner, to prevent customers from providing negative reviews of your business by getting them to agree not to do so.

Non-disparagement Clauses

This type of clause is called a “non-disparagement clause” and it is fairly common in settlement agreements in connection with litigation and in agreements relating to the purchase of a business (asset purchase/stock purchase agreements). It goes something like this:

Party A agrees not to make any disparaging statement, either orally or in writing, regarding Party B, the business, products, or services of Party B, or any of Party B’s shareholders, directors, officers, employees or agents, especially its lawyers, who all Parties agree are most excellent.

There you are minding your own business, trying to serve your customers well and reap the benefits of positive word-of-mouth advertising when suddenly an anonymous reviewer posts a very negative (and very anonymous) review of your business on Yelp or another online forum. You don’t know whether this is a competitor seeking to get an unfair advantage, someone with a personal beef against you, or just someone with too much time on his hands trolling cyberspace, but you know it is not a legitimate review.

In what strikes me as a solution in search of a problem, Wisconsin law was recently changed to prohibit employers from “request[ing] or requir[ing] an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.” While I’m guessing that some employer somewhere in the state requested this information at some point (or someone just imagined they might do it some day), I am not aware of any employers who actually requested employees’ private social media passwords.

With all the hype about this new employee privacy right, I think it’s important for employees and employers alike to realize that employers still have many rights when it comes to social media, IT, and what employees may do on the employer’s time and equipment.

Are you considering running a promotional contest for your business through a social media platform? Excellent! What fun! Who doesn’t love a contest? You’ll just want to be sure the contest doesn’t cause your business more trouble than it’s worth. And, really, it shouldn’t – as long as you play by the rules. Continue reading Who Doesn’t Love a Contest? Step Right Up! Don’t be Shy!→

Have you ever thought about the fact that Willy Wonka’s “Golden Ticket” prize promotion was more likely to land him with a heavy fine (or, possibly, in jail) than it was to land Charlie in the Chocolate Factory? As detailed in this story from imore.com, Steve Jobs learned about the legal barriers to just such a scheme in time to avoid the cost of engaging in it to promote sale of the iMac with his own Wonkatistic fantasy tour of Apple for the millionth iMac purchaser.

Bottom line: Use prize promotions at your own risk. It’s a gamble.

See, in America, EVERYTHING (just about) is regulated, including seemingly innocuous activities like raffles and prize promotions. So, before starting such a promotion, it may be wise to determine which laws apply to you, then review the relevant laws and consider whether your proposal is likely to cost you more in legal fees to defend you in court than it gains you in sales. Better yet, contact an experienced attorney familiar with B2C law who can help you determine which laws to apply to your facts and provide you with actual legal advice (unlike this post, which is purely for informational purposes – see disclaimer below). Continue reading Hey, Willy Wonka! Be Careful With Those “Golden Ticket” Prize Promotions.→

Even as website owners and operators struggle with how to comply with recent changes to the law governing Online Privacy Policies, changes to the underlying technology are in the works, bringing about the so-called “Post-Cookie World” and begging the question of how to adapt your online privacy policy to meet this new technology. I won’t pretend to understand the intricacies of cookie or post-cookie technology; my concern is drafting online privacy policies for my clients that adequately address whatever technology is currently in vogue and understanding just enough of it to do so.

In an effort to understand the underlying technology just enough to be dangerous (and glean some drafting principles that may follow from it), I recently came across guiding principles for developing cookie replacement technology published by the Interactive Advertising Bureau (“IAB”) entitled “Privacy and Tracking in a Post-Cookie World.” In developing its guiding principles, the IAB begins by “Imagining a world where HTTP cookies were never invented” and suggests that, in developing alternatives to the cookie for tracking consumers, it is important to bear in mind what the consumer wants. In my experience dealing with regulators who have no concept of something being outside their regulatory authority (particularly with consumers complaining to them), the IAB is correct that a proactive approach could keep the regulatory wolves at bay: Continue reading Online Privacy, Do Not Track, and the “Post-Cookie” World: New Guidance from the IAB→